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Alistair Currie from Bevan Brittan looks at a recent case of whistleblowing and the interpretration of what can be considered ‘in the public interest’.
Workers who 'blow the whistle', or raise a 'protected disclosure', benefit from greatly increased protection and compensation if they bring a successful claim for detriment or dismissal. In order to qualify for those additional benefits, the disclosure made by the worker must comply with the statutory definition of a protected disclosure, which includes a requirement that the disclosure is made in the public interest.
Originally there was no requirement for disclosures to have a public interest element under the Public Interest Disclosure Act 1998. This was viewed as something of a loophole for claimants, who often sought to make use of whistleblowing protections in relation to allegations or complaints about their own contracts of employment. In 2013, the 'public interest' element in the definition of a protected disclosure was therefore added. However, the government did not go further and specifically exclude breaches of workers' own contracts of employment. This left the door open for a wide construction of the phrase 'in the public interest'.
The Employment Appeal Tribunal (EAT) made use of that opportunity in a 2014 case called Chesterton Global Limited v Nurmohamed – it held that complaints about accountancy practices, raised by a relatively small group of employees (about 100), met the 'public interest' test. Last month, in Underwood v Wincanton, the EAT applied the Chesterton case and continued to widen the definition of a protected disclosure.
Mr Underwood was a lorry driver. He and three colleagues submitted a written complaint regarding their contractual terms, including, in particular, the way in which overtime was allocated among drivers. There was a suggestion that overtime was being withheld from drivers who were perceived as being overly zealous about the safety and road worthiness of vehicles (although this was far from clear).
Mr Underwood argued that the allegations made in the complaint from him and his colleagues amounted to a public interest 'protected disclosure'. However, an Employment Judge disagreed and struck out his claim. Mr Underwood appealed.
The EAT allowed the appeal, noting that the Employment Judge had not had the benefit of the decision in Chesterton (see above) when making his decision. The EAT said that the complaint raised by Mr Underwood and his colleagues was capable of being a protected disclosure because:
- Although unclear, there was a suggestion the disclosure raised wider concerns of vehicle safety and road-worthiness, which might be thought of as a matter of 'public interest'; and
- Following the line of reasoning in Chesterton, it was clear that the definition of 'public' was a wide definition and could include a smaller subset of the public, even if that comprised a small group of people employed by the same employer.
Furthermore, and importantly, the EAT noted that
- What is important is not whether the disclosure itself is in the public interest, but whether the worker making the disclosure reasonably believes that the disclosure is in the public interest; and
- Disputes relating to individual terms and conditions of employment could constitute matters in the 'public interest' and it was reasonable for an employee to hold the belief that such matters could be within the public interest.
What does this mean for employers?
This case confirms that a wide approach will be taken to the requirement that a worker needs a reasonable belief that their complaint or allegation is in the 'public interest'. It is possible for concerns regarding a worker's own contractual arrangements to qualify as a protected disclosure. However, the developing case law in this area suggests that there still needs to be some element of collective concern being raised (for example, in Chesterton, inaccurate accountancy practices which could mislead the public and, in Underwood, safety issues which could affect other road users).
Please note that Chesterton is being appealed to the Court of Appeal but is not due to be heard until October 2016 – and there is likely to be a further delay before the decision is published. In the meantime, your policies and practices will need to reflect the fact that it is now likely that issues involving individual contractual disputes will be categorised as being 'in the public interest'.
In a separate development this month on the same topic, Monitor, the Trust Development Authority (TDA) and NHS England have launched a consultation regarding a new standard whistleblowing policy for the NHS. This follows a recommendation from Sir Robert Francis to have a single national policy to help regularise the raising of concerns. Employers are encouraged to submit their comments via the NHS Employers website by 18 December 2015.
If you require any assistance with your whistleblowing arrangements, whether as a result of the developments described above or more generally, please contact me, or a member of the Bevan Brittan Employment Team. We can work with you on revising or drafting raising concerns policies, implementation, guiding you through investigation processes, providing training workshops for your management teams or advising on other recommendations arising from the NHS Freedom to Speak Up Review.
0370 194 7893